Jhonathan Victoria Javier v. Attorney General United States ( 2016 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 15-2781 and 15-3068
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JHONATHAN VICTORIA JAVIER,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF
AMERICA,
Respondent
______________
On Petition for Review of a Decision of the Board of
Immigration Appeals
(A059-303-967)
Immigration Judge: Walter Durling
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
March 21, 2016
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Before: GREENAWAY, JR., VANASKIE, and SHWARTZ,
Circuit Judges.
(Opinion Filed: June 9, 2016)
Raymond G. Lahoud, Esq.
Baurkot & Baurkot
227 South 7th Street
Easton, PA 18042
Attorney for Petitioner
Elizabeth R. Chapman, Esq.
Kristin A. Moresi, Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
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OPINION
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GREENAWAY, JR., Circuit Judge.
Jhonathan Victoria Javier petitions for review of two
orders of the Board of Immigration Appeals (“BIA”)
affirming the Immigration Judge’s (“IJ’s”) order of removal.
For the reasons that follow, we will dismiss for lack of
jurisdiction the petition for review of the BIA’s order dated
July 13, 2015 and deny the petition for review of the BIA’s
order dated August 19, 2015.
I. BACKGROUND
2
Javier is a citizen and native of the Dominican
Republic. In 2009, he entered the United States as a lawful
permanent resident. In July 2013, Javier was arrested for
carrying a firearm in public, in violation of 18 Pa. Cons. Stat.
§ 6108, and for making terroristic threats, in violation of 18
Pa. Cons. Stat. § 2706(a)(1). He was convicted of both
charges in the Court of Common Pleas of Philadelphia
County, Pennsylvania, in March 2014.
Later in 2014, the Department of Homeland Security
issued Javier a notice to appear, charging him with
removability due to his convictions. Following a removal
hearing held on April 2, 2015,1 the IJ issued an oral decision
concluding that Javier was removable pursuant to 8 U.S.C. §
1227(a)(2)(A)(i) as an alien convicted of a “crime involving
moral turpitude” based on his conviction for terroristic
threats. 2 The IJ also concluded that Javier was removable
1
At Javier’s request, the IJ continued his removal
proceedings while Javier pursued post-conviction relief in
state court. At the April 2, 2015 hearing, Javier informed the
IJ that his requests for post-conviction relief had been denied.
2
Section 1227(a)(2)(A)(i) also requires that the “crime
involving moral turpitude” be one for which “a sentence of
one year or longer may be imposed” and that the crime be
“committed within five years . . . after the [alien’s] date of
admission.” 8 U.S.C. § 1227(a)(2)(A)(i). These requirements
are not at issue in this petition.
3
pursuant to 8 U.S.C. § 1227(a)(2)(C) as an alien convicted of
a “firearm offense” based on his conviction for carrying a
firearm in public.
Javier appealed to the BIA. In an order dated August
19, 2015, the BIA affirmed the IJ’s order of removal and
dismissed Javier’s appeal based solely on Javier’s terroristic
threats conviction. 3 The BIA explained that the offense
defined by 18 Pa. Cons. Stat. § 2706(a)(1) involves “an
intentional action whose goal is to inflict [] psychological
distress [that follows an invasion of the victim’s sense of
personal security which] violates the norms of society to such
a degree as to constitute moral turpitude.” A.R. 4 (citing
Commonwealth v. Tizer, 684 A.2d 597, 600 (Pa. Super.
1996)). The BIA concluded that it “need not address the
3
Javier filed a notice of appeal of the IJ’s April 2, 2015
order but did not submit a brief until July 10, 2015, three days
before the BIA issued its opinion. On July 13, 2015, the BIA
summarily affirmed the IJ’s decision on the basis that Javier’s
notice of appeal was insufficient to apprise the BIA of the
grounds for Javier’s appeal. Javier then resubmitted his brief
along with a motion for reconsideration explaining the
reasons for the delay in transmitting his brief. In its August
19, 2015 order, the BIA explained that it had accepted
Javier’s reasons and sua sponte reopened Javier’s appeal to
consider the arguments in his brief. Javier has petitioned for
review of both the BIA’s July 13, 2015 and August 19, 2015
orders; by Order dated August 26, 2015, we consolidated
Javier’s petitions.
4
question of whether [Javier’s] conviction for carrying
firearms in public in violation of Pennsylvania law also
renders [him] removable.” Id. Javier then submitted this
timely petition, arguing that the BIA erred as a matter of law
in concluding that a section 2706(a)(1) offense is
categorically a “crime involving moral turpitude” and that the
IJ erred as a matter of law in concluding that a section 6108
offense is categorically a “firearm offense.”
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to review the BIA’s final order of
removal pursuant to 8 U.S.C. § 1252(a). We “review the
administrative record on which the final removal order is
based.” Li Hua Yuan v. Att’y Gen., 642 F.3d 420, 425 (3d
Cir. 2011) (quoting Zhang v. Gonzales, 405 F.3d 150, 155 (3d
Cir. 2005)). “[T]hat means reviewing only the BIA’s
decision” unless the BIA’s decision “specifically references
the IJ’s decision.” Id.4
We review legal determinations by the BIA de novo,
“subject to established principles of deference.” Wang v.
4
Thus, contrary to Javier’s assertion, we lack
jurisdiction to review the IJ’s decision that 18 Pa. Cons. Stat.
§ 6108 constitutes a “firearm offense” because the BIA did
not reference the IJ’s decision on this issue. We also lack
jurisdiction to review the BIA’s July 13, 2015 order
dismissing Javier’s appeal because it is not a final order of
removal; the BIA reopened Javier’s case. Therefore, we will
dismiss for lack of jurisdiction Javier’s petition for review of
the BIA’s July 13, 2015 order.
5
Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004). We afford
deference to the BIA’s definition of moral turpitude, but we
owe no deference to the BIA’s interpretation of a state
criminal statute. See Knapik v. Ashcroft, 384 F.3d 84, 87 n.3,
88 (3d Cir. 2004).
III. ANALYSIS
“In determining whether a state law conviction
constitutes a [crime involving moral turpitude] . . . we[] have
historically applied a ‘categorical’ approach, ‘focusing on the
underlying criminal statute rather than the alien’s specific
act.’” Jean-Louis v. Att’y Gen., 582 F.3d 462, 465 (3d Cir.
2009) (quoting Knapik, 384 F.3d at 88). Under the
categorical approach, “we read the applicable statute to
ascertain the least culpable conduct necessary to sustain a
conviction under the statute.” Partyka v. Att’y Gen., 417 F.3d
408, 411 (3d Cir. 2005). If “a statute covers both
turpitudinous and non-turpitudinous acts” then we turn to a
modified categorical approach and “look to the record of
conviction to determine whether the alien was convicted
under that part of the statute defining a crime involving moral
turpitude.” Id. “The modified categorical approach still
‘retains the categorical approach’s central feature: a focus on
the elements, rather than the facts, of a crime.’” United States
v. Brown, 765 F.3d 185, 190 (3d Cir. 2014) (quoting
Descamps v. United States, 133 S. Ct. 2276, 2285 (2013)).
As a general rule, a criminal statute is determined to
define a crime as categorically involving “moral turpitude
only if all of the conduct [the statute] prohibits is
turpitudinous.” Partyka, 417 F.3d at 411 (quoting Smalley v.
Ashcroft, 354 F.3d 332, 336 (5th Cir. 2003)). “[T]he
hallmark of moral turpitude is a reprehensible act committed
6
with an appreciable level of consciousness or deliberation.”
Mahn v. Att’y Gen., 767 F.3d 170, 174 (3d Cir. 2014)
(quoting Partyka, 417 F.3d at 414). Although the
Immigration and Nationality Act does not define “moral
turpitude,” “the BIA and this Circuit have defined morally
turpitudinous conduct as ‘conduct that is inherently base, vile,
or depraved, contrary to the accepted rules of morality and the
duties owed to other persons, either individually or to society
in general.’” Id. (quoting Knapik, 384 F.3d at 89). An act is
turpitudinous if it “is accompanied by a vicious motive or a
corrupt mind.” Partyka, 417 F.3d at 413 (quoting Matter of
Franklin, 20 I. & N. Dec. 867, 868 (BIA 1994)).
Here, Title 18, Section 2706(a) of the Pennsylvania
Consolidated Statutes is divisible into three variations of the
same offense—i.e., subsections (a)(1), (a)(2), and (a)(3). See
Brown, 765 F.3d at 191–92. Javier was convicted under
section 2706(a)(1). See A.R. 230 (Order of Sentence stating
that Javier was convicted under “18 § 2706 §§ A1,” which the
Order entitled “Terroristic Threats W/ Int To Terrorize
Another”). Section 2706(a)(1) states that “[a] person
commits the crime of terroristic threats if the person
communicates, either directly or indirectly, a threat to: []
commit any crime of violence with intent to terrorize
another.” 18 Pa. Cons. Stat. § 2706(a)(1). As discussed
below, because of this specific intent requirement, we need
not look any further to determine that a violation of section
2706(a)(1) is a “crime involving moral turpitude.” Cf.
Commonwealth v. Walker, 836 A.2d 999, 1001 (Pa. Super.
2003) (“[O]ne commits terroristic threats [] by threatening a
crime of violence with specific intent to cause terror
(subsection 1), or by threatening anything that causes terror
7
with reckless disregard of the risk of causing terror
(subsection 3).”).5
Javier argues that “crime of violence” encompasses
simple assault, which he contends is a non-turpitudinous
crime. Therefore, he contends, the statute encompasses the
non-turpitudinous crime of threatening to commit simple
assault and the BIA erred in concluding that section
2706(a)(1) is categorically a “crime involving moral
turpitude.”
We disagree. Our focus in determining whether
section 2706(a)(1) is categorically a crime involving moral
turpitude is not the threatened “crime of violence,” but the
communication of the threat and its requisite scienter. After
all, the harm that section 2706(a)(1) seeks to prevent is not
the “crime of violence,” but rather the consequences of the
threat—i.e., “the psychological distress that follows from an
invasion of another’s sense of personal security.”
Commonwealth v. Fenton, 750 A.2d 863, 865 (Pa. Super.
2000) (quoting Tizer, 684 A.2d at 600). And section
2706(a)(1) unambiguously requires that the threat be
communicated with a specific “intent to terrorize.” 18 Pa.
Cons. Stat. § 2706(a)(1); Walker, 836 A.2d at 1001.
5
Javier argues that the BIA erred by not applying the
modified categorical approach to evaluate whether his
conviction constituted a crime involving moral turpitude.
This argument is unavailing. Under either the categorical
approach or modified categorical approach, we would still
conclude that Javier was convicted of a crime involving moral
turpitude.
8
A threat communicated with intent to terrorize is of a
different character than simple assault, and therefore we do
not equate such a threat with simple assault. See Chanmouny
v. Ashcroft, 376 F.3d 810, 814–15 (8th Cir. 2004) (reasoning
that Minnesota terroristic threat statute’s “requisite intent to
terrorize [] serves to distinguish Chanmouny’s offense from
simple assault” because “[s]imple assault typically is a
general intent crime, and it is thus different in character”).
We conclude that a threat communicated with a specific
intent to terrorize is an act “accompanied by a vicious motive
or a corrupt mind” so as to be categorically morally
turpitudinous. See Partyka, 417 F.3d at 413. Because the
BIA did not legally err by so concluding, we will deny
Javier’s petition.6
6
Javier’s reliance on Larios v. Attorney General, 402
F. App’x 705 (3d Cir. 2010), is unavailing. There, a panel of
this Court found that an analogous New Jersey terroristic
threat statute encompassed non-turpitudinous conduct
because it could be applied to a threat to commit simple
assault. Id. at 709. The panel reasoned that because simple
assault is non-turpitudinous, a threat to commit simple assault
is non-turpitudinous. Id. Larios is a not precedential opinion
which we are not bound to follow. We disagree with the
panel’s focus on the “crime of violence,” rather than the
criminalized conduct itself—which requires a malicious
scienter. It has long been established that “moral turpitude
normally inheres in the intent.” See, e.g., Jean-Louis, 582
F.3d at 469 (quoting Matter of Abreu-Semino, 12 I. & N. Dec.
775, 777 (BIA 1968)); see also Michel v. INS, 206 F.3d 253,
263 (2d Cir. 2000) (“[C]orrupt scienter is the touchstone of
moral turpitude.”). Therefore, we focus on the intent required
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IV. CONCLUSION
For the foregoing reasons, we will dismiss for lack of
jurisdiction the petition for review of the BIA’s order dated
July 13, 2015 and deny the petition for review of the BIA’s
order dated August 19, 2015.
by section 2706(a)(1) and agree with the BIA that the offense
as defined under section 2706(a)(1) is categorically a crime
involving moral turpitude.
10